Googling for Meaning: Statutory Interpretation in the Digital Age

Dictionary use has
become a common practice in modern statutory interpretation at the Supreme
Court.1
With the rise of the “new textualism,”2
Justices increasingly rely on dictionaries to shed light on the plain meaning
of statutes—that is, the understanding that an ordinary English speaker
would draw from the text.3 This trend is not limited to textualists:
Justices who favor purposivist analyses of legislative intent cite dictionaries
just as often.4

Scholars and
practitioners have criticized this development in two main ways.5
The first critique questions the soundness of the interpretive methodology,
which they see as flawed or inconsistently applied.6 The second focuses on the limitations
inherent in relying on fixed definitions, which by their nature cannot account
for contextual factors.7

This Essay offers a
novel critique that challenges the status of the dictionary itself as an
authoritative source of meaning. In today’s digitized world, traditional
dictionaries—print dictionaries produced by professional
lexicographers—are outmoded.8 Sales of reference books are plummeting, and
people are going online in unprecedented numbers for reference resources such as online dictionaries and Wikipedia, the
crowdsourced encyclopedia website.9 As a result, traditional dictionaries are
losing both their descriptive
authority to accurately reflect popular usage and their prescriptive authority to shape usage.10

As they lose their
power to describe and prescribe meaning, traditional dictionaries have become
poor references for both plain meaning and legislative intent, calling into
question their value to both textualist and purposivist analyses. Thus, even
before we reach questions of methodology, there is a prior problem of whether
we are even looking at the right sources for definitions. To justify continued
judicial reliance on reference materials, we must recognize the dictionary’s
diminishing role in today’s society and develop a theory that integrates new,
Internet-driven resources into statutory interpretation.

I. the rise
of internet resources

The Internet has made
traditional dictionaries obsolete. Sales of reference books decreased by
thirty-seven percent just between 2007 and 2014,11 and some estimates see the market shrinking
by tens of percentage points per year.12 Macmillan Publishers decided to stop
printing its dictionaries in 2012,13
and the Oxford English Dictionary may never be printed again.14 At the same time, comparable resources on
the Internet have grown enormously. From July 2011 to July 2015, for example,
the number of unique monthly visitors to Wikipedia increased from approximately
88 million to 117 million;15 today, more than half of the adults who go
online read Wikipedia.16 Similarly, Merriam-Webster’s online
dictionary receives about two hundred million page views per month.17

Table 1 provides an overview of some of the most popular
Internet reference sites. These resources include online dictionaries, such as
Dictionary.com; user-generated reference platforms, like Wikipedia.org and
UrbanDictionary.com; and search engines that provide definitions, such as
Google.com. In determining the influence of each resource, I took into account
both its popularity—defined by the number of daily visitors and page
views—and its accessibility—the ease with which an Internet user
would find her way to the resource from a search engine.18

Table 1.

internet reference resources by popularity, accessibility, and source

For the notes accompanying Table 1, please see the PDF version of this piece.

Based on the number
of visitors and page views, Google and Wikipedia are by far the most
influential in describing and shaping the common meanings of words. Google, the
most popular website in the United States, boasts arguably the most influential
dictionary of all. Its dictionary function has been integrated into the search
function so that, when a user searches a word in Google, the word’s definition
automatically pops up as the first entry in the search results. Since Google
introduced this function, traffic to many of the largest online dictionaries
has fallen steadily: in just a fourteen-month period, Dictionary.com
experienced a 10.2% drop in traffic, and Merriam-Webster online lost about a
third of its traffic.19 Wikipedia holds a similar position; on some
Google searches, an excerpt from the relevant Wikipedia entry appears at the
top of the page before the other search results.20

The differences
between these Internet resources and the traditional dictionaries that the
Justices favor are striking. First, Internet reference resources are not
limited to professionally published dictionaries; they include services that
provide solely user-generated content. The archetype is Wikipedia and its
companion dictionary website, Wiktionary. Both rely on users, rather than
designated professionals, to generate their content.21 As Table 1 shows, reference resources
relying on user-generated content—Wikipedia, Wiktionary, and Urban
Dictionary—outperform most other online dictionaries in both popularity
and accessibility.

Second, even for
online dictionaries that draw their content from their print counterparts,
there is a clear mismatch between the dictionaries that people most commonly
access and those that the Justices tend to use. As shown in Table 1, the most
influential online resources—including online dictionaries and Google
definitions—rely on the following print dictionaries: the Oxford American
College Dictionary; Random House Unabridged Dictionary; American Heritage
Dictionary, 4th Edition; and Merriam-Webster’s Collegiate Dictionary, 11th
Edition. The four dictionaries that the Justices most favor, on the other hand,22 are Webster’s Third New International
Dictionary, the Oxford English Dictionary, Webster’s Second New International
Dictionary, and the American Heritage Dictionary.23 Indeed, as Google pulls readers away even
from online dictionaries with its self-populating definitions, whatever dictionary
Google chooses to utilize may eventually become the only dictionary that
matters.

II. disconnected
from ordinary meaning

The ability of print
dictionaries to accurately reflect the ordinary meaning of words will
deteriorate as the Internet continues to advance. In an age where Google
definitions and Wikipedia entries serve as the primary points of reference for
the average person, both the prescriptive and descriptive powers of traditional
dictionaries are diminished.

It is most readily
apparent that traditional dictionaries no longer exert the prescriptive
influence they once did. A dictionary has prescriptive power to guide and shape
our understanding of words only to the extent that people actually refer to it.
As more people seek guidance online from a diversity of references that include
user-generated resources, print dictionaries will lose their ability to shape
“proper” usage.24
This decentralization of sources of meaning threatens to dethrone print
dictionaries as the authoritative gatekeepers of the language.

Traditional
dictionaries are also inferior to online resources in their descriptive power
to capture language use as it exists. Revising a dictionary and publishing a
new edition simply takes an enormous amount of time. Almost three decades
passed between the second and third editions of Webster’s Third New
International Dictionary; even abridged college dictionaries are typically revised
thoroughly only every ten years or so, although publishers may make minor
updates in the meantime.25 While it has always been inevitable that
dictionaries lag behind current usage,26 the Internet has accelerated the evolution
of language and created a faster-moving target with which print dictionaries
cannot keep up.27

Moreover, traditional
dictionaries draw from a narrower pool of language than that which the ordinary
English speaker experiences, a gap that has been exacerbated by the Internet.
In collecting the usages that guide their definitions, traditional dictionaries
tend to draw from well-established print sources, rather than Internet sources.28 This practice is particularly important to
prescriptive dictionaries like the American Heritage Dictionary,29 which seek to set the standards for proper
usage and thus may cull only from well-established sources to update existing
definitions and add new words. But even descriptive dictionaries, like those
published by Merriam-Webster, draw only from published material, including
books, newspapers, magazines, and electronic publications.30 In contrast, ordinary English speakers are
consuming more informal Internet websites and blogs and less published
material.31
Thus, traditional dictionaries are increasingly out of touch with the ordinary
understanding of words.

One might argue that
the disconnect between dictionary-driven statutory interpretation and popular
understanding is not problematic in itself. After all, many words bear multiple
meanings, and formal uses of words are often readily distinguishable from their
colloquial meanings. No one is likely to misunderstand a statute providing
“relief” for tort victims to mean that it will relieve them of physical pain.
But statutory interpretation—which becomes difficult only in cases of
statutory ambiguity—requires a greater capacity for nuance and complexity.

First, judges use
dictionaries not only to choose the correct meaning for a word from a list of
possible definitions, but often also to ascertain the precise boundaries of
what a word in a statute does or does not encompass. An accurate assessment of
nuance and connotation is quite important in such cases. Consider Judge Richard
Posner’s novel approach in United States
v. Costello, which concerned whether a woman had “harbored” her boyfriend
by permitting him to live with her despite knowing that he was in the country
illegally.32 Judge Posner sought to understand the
connotation of that term through an analysis using Google search results. He
ran searches for phrases such as “harboring fugitives,” “harboring enemies,”
and “harboring friends” and compared the number of hits to determine how
“harboring” is used in practice—that is, its ordinary meaning.33 The results—many hits for terms like
“harboring fugitives” and few for things like “harboring friends” or “harboring
guests”—led Judge Posner to conclude that “‘harboring,’ as the word is
actually used, has a connotation . . . of deliberately safeguarding members of
a specified group from the authorities.”34 So, because Ms. Costello had not actively
shielded her boyfriend from the government, she had not violated the statute’s
prohibition.35 When such subtle differences in connotation
matter, even small gaps between dictionary definitions and ordinary
understanding are problematic. Judge Posner’s choice to look to Google
results—rather than dictionaries—illustrates the high stakes of
these small gaps.

Second, mismatches
with ordinary understanding have implications for fair notice, an important theoretical
underpinning of textualism.36 Although actual notice of the law’s
prohibitions is not required, the notion of fairness requires an opportunity to
learn what the law prohibits.37 To the extent that dictionary definitions do
not match up with the ordinary English speaker’s understanding of words, it is
unfair to rely on them in statutory interpretation.

III. detached from legislative intent

The obsolescence of
traditional dictionaries also affects their role in purposivist
analyses—the interpretation of legislative intent. Empirical surveys of
congressional staffers have already shown that many do not routinely consult
dictionaries in drafting legislation.38
The drafters’ use of a particular word in a statute is therefore likely to
reflect their personal understanding of that word’s ordinary meaning. To the
extent that their understanding of ordinary meaning is shaped by the Internet
rather than traditional dictionaries, dictionary definitions are ill-equipped
to shed light on legislative intent.

The young average age
of staffers—those most intimately involved with drafting
statutes—makes it especially unlikely that they engage with traditional
dictionaries. A 2001 survey of Senate staff indicated that the average ages of
junior and senior legislative assistants were twenty-six and thirty-two,
respectively.39 These young staffers are more likely to use
Internet resources than print dictionaries, out of familiarity and convenience.40 In a 2007 study of university students, over
two-thirds said that they use dictionaries exclusively or mostly online.41

Moreover, to the
extent that congressional staffers do wish to consult reference material, they
would likely be inclined to look to Internet resources simply because they are
available for free. Surveys have suggested that the cost of dictionaries
prevents congressional staffers from using them.42 Online dictionaries, on the other hand, most
often allow free access.43

Of course, the
concern is not that staffers may use new words that do not yet appear in print
dictionaries in drafting statutes. Rather, it is that these staffers may use a
common, existing word with a somewhat different meaning in mind than what the
Justices’ traditional dictionary says. This situation is particularly likely to
arise with statutes governing areas of law susceptible to technological and
other changes, which must accurately track new developments in the world at
large in order to serve their purpose. For all of these reasons, traditional
dictionaries look ever more inaccurate as tools for inferring legislative
intent.

Conclusion

Given popular usage
patterns that favor Internet resources, traditional dictionaries struggle to
fulfill their presumed interpretive role of providing reliable insight into the
ordinary meaning of statutory terms and the legislative intent behind them. A
new framework for constraining dictionary use is needed if reference resources
are to continue to play a part in statutory interpretation.

Courts already refer
to online resources like Urban Dictionary to shed light on testimony,44 and a body of literature has already begun
to consider whether and how blogs and Wikipedia should be used by courts.45 Future scholarship should draw on this work
to develop a theory of statutory interpretation that considers how these online
resources should be used in interpreting statutes that are drafted in the
Internet age.

Integrating these new
resources will not be easy; such a theory would have to account for the
shifting realities of online reference use and grapple with normative questions
about what types of references should be given weight, and in what situations.
Do user-generated resources like Wikipedia and Urban Dictionary have a place in
determining meaning, or do they lack the necessary safeguards to prevent abuse?
Should we worry that non-American uses of English online may influence the
interpretation of U.S. statutes? How do we determine when different usages or
online definitions came into being?

It may be
impossible to come up with satisfying answers to all of these questions. But if
there is a way to harness these online references, they will become powerful
tools with revolutionary potential for statutory interpretation.

Alice A. Wang is a member of the Yale Law
School J.D. Class of 2016. She would like to thank Andrew Lyons-Berg, Joseph
Masterman, Michael Clemente, and the editors of the Yale Law Journal for their thoughtful suggestions and careful editing.

The new textualism, most closely associated with Justice Scalia, focuses statutory interpretation on the text of the statute in question and the larger body of surrounding law. Rickie Sonpal, Old Dictionaries and New Textualists, 71 Fordham L. Rev. 2177, 2192 (2003).

3

Plain meaning can diverge from ordinary meaning when a statute includes a specific definition for a term or when a statute uses a term that has a specialized meaning within a particular field. This Essay’s criticisms center on dictionaries’ failure to reflect ordinary meaning, although they also apply to statutory definitions and technical terms to a lesser degree.

4

Brudney & Baum, supra note 1, at 489. That liberal and conservative judges cite dictionaries at comparable rates has been found at the D.C. Circuit as well. Calhoun, supra note 1, at 511-12. For an overview of textualist versus purposivist approaches on the Court, see Abbe R. Gluck, The States as Laboratories of Statutory Interpretation: Methodological Consensus and the New Modified Textualism, 119 Yale L.J. 1750, 1762-64 (2010).

5

Sonpal, supra note 2, at 2197.

6

See, e.g., Brudney & Baum, supra note 1, at 490-91. Brudney and Baum find that there is wide variation in which dictionaries each Justice prefers, as well as inconsistencies in how true they stay to that preference from case to case. In addition, the Justices appear to lack a coherent approach to addressing the temporal gap between the enactment of a statute and its construction by the Court. Id.

This Essay uses the term “traditional dictionary” to refer to print dictionaries as distinguished from online dictionaries, including those which derive their primary content from print dictionaries. In addition, this terminology recognizes the existence of what one might consider non-traditional dictionaries, for example Wiktionary, which contain definitions that are crowdsourced from users rather than crafted by professional lexicographers. See Wiktionary, the Free Dictionary, Wiktionary, http://en.wiktionary.org/wiki/Wiktionary:Main_Page [http://perma.cc/5BXN-4ESQ].

Lexicographic approaches divide into two primary camps: descriptive and prescriptive. The descriptive approach attempts to describe how words are used by considering a wide variety of sources; the prescriptive approach draws from select reputable sources to show users how words should be used. See Ellen P. Aprill, The Law of the Word: Dictionary Shopping in the Supreme Court, 30 Ariz. St. L.J. 275, 284 (1998).

Bruce Joshua Miller, The World Still Needs Its Dictionaries, but How We Define Them Is Changing, Chi. Trib. (Dec. 12, 2014), http://www.chicagotribune.com/lifestyles/books/ct-prj-dictionary-in-digital-age-20141212-story.html [http://perma.cc/7DVF-3549]. As we will see, online dictionaries are sometimes derived from print dictionaries but often differ significantly from print dictionaries by the same publishers. To the extent that the most popular dictionaries online are distinct from the prominent print dictionaries the Justices refer to, there is an interpretive difficulty in claiming that the print dictionaries reflect ordinary meaning.

18

For further explanations of the methodology, see infra notes a-e (accompanying Table 1).

Although some of the names of the dictionaries in the two categories are similar, there is in fact not much overlap between the two lists.

Although both published by Oxford, the Oxford American College Dictionary is distinct from the Oxford English Dictionary; it is based on the New Oxford American Dictionary, which is derived from the Oxford Dictionary of English (ODE). The ODE is an entirely new dictionary distinct from the OED and takes a more descriptive approach. Among other differences, the ODE places the most common meaning first in its definitions, while the OED lists meanings in historical order. See Oxford Dictionary of English, World Wide Words, http://www.worldwidewords.org/reviews/re-oed1.htm [http://perma.cc/8QA2-DL9E]; The Oxford American College Dictionary, The Book Depository, http://www.bookdepository.com/Oxford-American-College-Dictionary/9780399144158 [http://perma.cc/C3HC-JCEJ].

Similarly, to the extent that there are similarities between Merriam-Webster’s Collegiate Dictionary and Webster’s Second and Third International Dictionaries (the Collegiate Dictionary began as an abridged version of Webster’s Third), they may be largely obliterated by the fact that Webster’s Collegiate is updated annually and has been completely re-edited and revised roughly every decade, unlike Webster’s Third, which was published in 1961 and most recently updated in 2002. Merriam-Webster’s Ongoing Commitment, Merriam-Webster, http://www.merriam-webster.com/info/commitment.htm [http://perma.cc/Z33M-EQST].

23

Brudney & Baum, supra note 1, at 529.

24

The major newspapers have a shrinking monopoly on written communication, and it may no longer be the case that the “polite press,” represented by the New York Times, is “the single most powerful influence in constituting the record of the English lexicon.” Adam Liptak, Justices Turning More Frequently to Dictionary, and Not Just for Big Words, N.Y. Times (June 13, 2011), http://www.nytimes.com/2011/06/14/us/14bar.html [http://perma.cc/Z2EE-LSQZ].

25

Aprill, supra note 10, at 287.

26

Id.

27

The tendency of the Internet and electronic communication to generate linguistic innovation has been recognized since its early days. See, e.g., Guy Merchant, Teenagers in Cyberspace: An Investigation of Language Use and Language Change in Internet Chatrooms, 24 J. Res. Reading 293 (2001).

28

A survey of lexicographic staff suggested that the “polite press,” epitomized by the New York Times, exerts the most influence over the lexicographic record. Liptak, supra note 24.

29

Brudney & Baum, supra note 1, at 508. Although the difference between prescriptive and descriptive dictionaries is practically small because all twenty-first century dictionaries are largely descriptive, the distinction does seem to be important as an ideological matter for some Justices. Id.

United States v. Costello, 666 F.3d 1040, 1043 (7th Cir. 2012). The statute in question applies to anyone who “conceals, harbors or shields from detection” a person who has entered or remains in the United States in violation of the law. Id. at 1041. Because there was no evidence of concealing or shielding, the case came down to the question of what exactly constitutes “harbor[ing].” Id. at 1042-43.

Young people aged eighteen to thirty-three make up thirty-five percent of the Internet-using population, more than any other age group. Zickuhr, supra note 31, at 4. Ninety-five percent of individuals in this age group go online, also the most out of all age groups. Id. at 5. In addition, this cohort also displayed the greatest propensity for Internet search engines, with ninety-two percent using them, and for getting their news online, with eighty-two percent doing so. Id. at 11, 23.

41

Muffy E. A. Siegel, What Do You Do with a Dictionary?: A Study of Undergraduate Dictionary Use, 28 Dictionaries: J. Dictionary Soc’y N. Am. 23, 31 (2007). Virtually all of the surveyed students said that they referred to dictionaries in order to find the correct meaning of words. Id. at 33.

42

Gluck & Bressman, supra note 38, at 938.

43

It is worth noting that the online version of the Oxford English Dictionary, one of the Justices’ favorite dictionaries, is not free and requires a subscription for access. Free OED, Oxford English Dictionary, http://public.oed.com/about/free-oed [http://perma.cc/4CRV-T6GA] (explaining that the OED requires a subscription but some local libraries provide free access).